The Boston Globe recently published an article about same-sex parents, and their rights to custody of children, despite their biological relations. Here’s what this conversation could mean in the world of family law
Our Supreme Judicial Court is being asked to determine whether a partner in a same-sex relationship should be deemed a “legal parent” of two children raised by the partners if there is no marriage between the partners, the children were conceived through artificial insemination and given birth by only one partner, and there is no adoption by the other.
When couples fall in love and have children, regardless of sexual orientation, they have the best of intentions. They do not plan for the worst, they plan for the best. They take few precautions to establish and formalize their rights as parents, because they are in love and believe that that love will last forever. In many instances, it is a trusting partner and the children who are at risk and may be hurt by this oversight.
Due to biological limitations, it is vital to establish rights and obligations of same-sex partners, especially as parents, from the beginning. Only one can be a “biological” parent—the other is at risk without legal precautions being taken. Marriage is one way of establishing one’s rights; adoption is another. A written agreement between the partners is another way of giving voice to such intentions. Our highest Court may find another way.
These cases are fact specific; generalizations and sweeping guidelines should not ignore the best interests of the child, which should be of paramount importance. If we are to provide same-sex couples with equal protection under the law, their rights as parents should be treated no differently.
For years, the definition of “family” has been changing in our society. The law has not caught up with all of these changes, but another opportunity is before the Supreme Judicial Court to make further inroads. Whatever the decision, it ought to give due consideration (honor) to what is best for the children, and what the parties’ intent was before the couple fell upon difficult times.